Mon, 21 Dec 2020
This analysis was first published on Lexis®PSL
Local Government analysis: In deciding a challenge to an experimental traffic order (ETO), the High Court accepted that the defendant authority had breached statutory requirements by failing to hold, or consider holding, a public inquiry, make certain documents available for public inspection, and provide an adequate statement of reasons. The effect of the judgment was that the defendant authority would need to undertake further procedural requirements if it wished to make the experimental order permanent. Written by Howard Leithead.
Richard William Tomkins v City of London Corporation  EWHC 3357 (Admin)
What are the practical implications of this case?
The approach that the judge took in considering the grounds of challenge will assist those challenging or defending the making of a traffic order in similar circumstances. Traffic authorities should note that a failure to comply with the necessary procedural requirements can result in potentially time-consuming and costly litigation and might result in the relevant order being quashed. Potential claimants should observe that a judgment that failures occurred will not necessarily result in the order being quashed.
In addition, the case provides an example of a situation where a claimant can succeed on part of their claim, but be denied their costs. It underlines the need to consider carefully which potential grounds to run.
What was the background?
By means of a claim for statutory review under paragraphs 35 and 36 of Schedule 9 to the Road Traffic Regulation Act 1984 (RTRA 1984), the claimant, Richard Tomkins, challenged the validity of an ETO made on 2 March 2020 by the defendant, the City of London Corporation (the City), which was the relevant traffic authority.
The ETO restricted traffic along Beech Street, a road under a raised section of the Barbican Centre in the City of London, to zero emissions vehicles (except for access) in an attempt to improve air quality in the street. As well as being the relevant traffic authority for the purposes of the RTRA 1984, the City was the local authority and the owner of the Barbican Centre.
Of particular concern to the claimant, a resident of the Barbican, was that his (petrol) car was parked in an allocated space in a car park in Beech Street and the ETO made access to it circuitous and difficult. It was also not practical for him to change to driving a zero emissions vehicle due to insufficient charging facilities in the vicinity.
Various failures were alleged in relation to the making of the ETO, including allegations of procedural failures which constituted breaches of the Local Authorities’ Traffic Orders (Procedure) (England and Wales) Regulations 1996, SI 1996/2489 (the 1996 Regulations).
What did the court decide?
The claimant, who was unrepresented, succeeded in respect of three grounds:
- that the City failed to hold, or consider holding, a public inquiry pursuant to the 1996 Regulations, SI 1996/2489, reg 9 (Ground 3)
- that the City failed to comply with the procedural requirements in the 1996 Regulations, SI 1996/2489, reg 23(3) to make the relevant documents available for public inspection (Ground 5), and
- that the City failed to provide an adequate statement of reasons, as required by the 1996 Regulations, SI 1996/2489, Sch 2, para 2(d) (Ground 6)
Notwithstanding this, the court declined to quash the ETO. In respect of Ground 3, the judge said that if the City had considered whether to hold an inquiry it would very likely have decided not to hold one. Thus, she said, the decision would have been the same absent the error of law complained of (Simplex GE (Holdings) Ltd v SSE  PTSR 1041). As to Grounds 5 and 6, the judge decided that, while the City’s failures to make the relevant documents available for public inspection or to provide an adequate statement of reasons were both significant breaches of statutory requirements, they did not substantially prejudice the claimant.
Although the judge declined to quash the ETO, she noted that the effect of the declarations was that the City would not be able to follow the truncated procedure for making an ETO permanent under 1996 Regulations, SI 1996/2489, reg 23(3). This means that the City would need to undertake further procedural requirements.
Finally, in deciding costs, the judge refused the claimant’s application for the City to pay his costs. She noted that the City had succeeded on five grounds, that the issues on which the City had succeeded occupied the majority of the hearing and the post-hearing submissions, and that the City’s costs had far exceeded those of the claimant. Instead, she accepted the City’s proposal that each party should bear their own costs.
- Court: High Court, Queen’s Bench Division, Admin Court
- Judge: Mrs Justice Beverley Lang
- Date of judgment: 8 December 2020